IN THE SUPREME COURT OF OHIO STATE cx rel. WAYNE T. DONER, et al., Relators, Case No. 2009-1292 Original Action in Mandamus V. SEAN D. LOGAN, Director, Ohio Department of Natural Resources, et al., Respondents. NOTICF, OF FILING SUBPOENA TO CONESTOGA-ROVERS AND ASSOCIATES, WEST CHESTER, OHIO BRUCE L. INGRAM* (0018008) *Counsel ofRecord JOSEPH R. MILLER (0068463) T'HOMAS H. FUSONIE (0074201) KRISTIKRESS WILHELMY (0078090) MARTHA C. BREWER (0083788) Vorys, Sater, Seymour and Pease LLP 52 East Gay Street P.O. Box 1008 Cohmibus, Ohio 43216-1008 614-462-6480 614-719-4775 fax blingram cvorys.com [email protected][email protected][email protected][email protected]Counsel for Relators RICIIARD CORDRAY Ohio Attorney General WILLIAM J. COLE* (0067778) *Courzsel of Recor•d MINDY WORLY (0037395) JENNIFER S.M. CROSKEY (0072379) Assistant Attorneys General 30 East Broad Street, 26th Floor Columbus, Ohio 43215 614-466-2980 866-354-4086 fax [email protected]mindy.worly(cil ohioattorneygeneral.gov j ennifer. croskey @ohioattorneygeneral. gov DALET. VITALE (0021754) DANIEL J. MARTIN ( 0065249) RACHEI. H. STELZER ( 0083124) Assistant Attorneys General 2045 Morse Road #D-2 Columbus, Ohio 43229 614-265-6870 614-268-8871 fax [email protected][email protected][email protected]Counsel for Respondents
Transcript
IN THE SUPREME COURT OF OHIO
STATE cx rel. WAYNE T. DONER, et al.,
Relators,
Case No. 2009-1292
Original Action in Mandamus
V.
SEAN D. LOGAN, Director,Ohio Department of Natural Resources, et al.,
Respondents.
NOTICF, OF FILING SUBPOENA TOCONESTOGA-ROVERS AND ASSOCIATES, WEST CHESTER, OHIO
BRUCE L. INGRAM* (0018008)*Counsel ofRecord
JOSEPH R. MILLER (0068463)T'HOMAS H. FUSONIE (0074201)KRISTIKRESS WILHELMY (0078090)MARTHA C. BREWER (0083788)Vorys, Sater, Seymour and Pease LLP52 East Gay StreetP.O. Box 1008Cohmibus, Ohio 43216-1008614-462-6480614-719-4775 faxblingram [email protected]@[email protected]@vorys.com
IN THE SUPRBME COURT OF OHIO, 63 S. FRONT STREET, COLUMBUS, 01110 43215IfI(I CIVIL CASE SUBPOENA I(I((
STATE OF OHIO EX RBL. WAYNE T. DONER, ET AL.,
Relators,
V.
SEAN D. LOGAN, DIl2ECTOR OFIIO DEPARTMENTOP NATURAL RESODRCES, ET AL.,
Rcspondents.
'PO: CONESTOGA-ROVERS AND ASSOCIATES, INC.
9033 MERIDIAN WAYWEST CHESTER, OH 45069
Case No. 2009-1292
YOU ARE HEREBY COMMANDED TO:
ATT'END AND GIVE TESTIMONY AT A(TRiAL)(3EARING) (DEPOSITION) ON TIIE DATE, TIME AND ATTHE PLACESPECIFIFDBELOW.
ATTEND AND PRODUCE (DOCUMENTS) (TANGIBLE THINGS) AT A(1'RIAL) (HEARING) (DEPOSITION) ONTHE DATE, TIME AND AT'P13E PLACE SPECIFIED BELOW.
PRODUCE, AND PERMIT INSPECTION AND COPYING, ON THE DATE AND A'1' TFiE TIME AND PLACESPECIFIED BELOW, OP ANY DESIGNATED DOCUMENTS THAT ARE IN YOUR POSSESSION, CUSTODY ORCONTROL.
PRODUCE AND PERMIT' INSPECTION AND COPYING, TESTING OR SAMPLING, ON TIiE DA7E AND AT THETBv1E AND PLACE SPFCIFIED BELOW, OF ANY TANGIBLE THINGS TIIAT ARE IN YOUR POSSESSION,CUSTODY OR CONTROL.
PERMI7' ENTRY UPON THE FOLLOWING DESCRIBED LAND OR OTHFR PROPER7'Y, FOR THE PURPOSESDESC1tIBED IN CIV, R 34(A)(3), ON THE DATE AND AT THE TTME SPEC)F1ED BELOW. DESCItIF77ON OFLANDOROTNEI2PREMISES.^ _^_^._ _.,_._..........._..
Day _^!^'gdpesoaY DATE Aor'12$ 2010 TIME 9:OD am
PLACE O^ce„g^(je Attomev General ,},O ^cut Broad Street 261h Floor F e C e^,Qencies Section. Columhus. DN 432I5
DESCRB'TION OF fCEMS TO BE PRODUCED: See lAi p^ttaalea
9'HE STATE OF OHIOFranklin County, ss:Tu the Sheriff of N/AYOU ARE IIEREBY COMMANDED TO SUBPOENA THE ABOVE NAMED PERSON.WYfNESS MY IIAND AND SEAL OF SAID COURT TIIIS 26TH OF APR11., 2010.ICRISTINA D. FROST, CLERK OF THE SUPREME COURT OF OHIO
CIVIL RULE 45(C) PROTECTION OF PERSONS SUBJECT TO SUBPOENAS.
(1) A party or nn attomey responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undueburdcn or expense on a person subject to Ihat subpoena.
(2) (a) A pcrson commanded to produce under divisions (A)(I)(b)(ii), ( iii), (iv), or (v) of this rule need not appear in person at theplace of production or inspection unless commanded to attend and give testimony at a deposition, hcaring, or trial.
(s) Subject to division (D)(2) of this rule, aperson commanded to produce under divisions (A)(I)(b)(ii), (iii), (iv), or (v) oftiris rule
may, within €ouneen days after service of the subpoena or before the time spceified for compliance if such time is less thnn fourteendays after service, serve upon the pany or attomey designated in the subpoena written objections to production. If objection is made,the party serving the subpoena sltatl not be entitled to productiwt except ptvsuant to an order of the court by which the subpoena wasissued. If objection has been nrade, the party serving the subpoena, upon notice to thc person commanded to produce, may move atany time for an order to contpel the productiun. An order to compel production shall protect any person who is not a party or an of7merof a parly from signifieant expense resulting from the production commended.
(3) On tfmcly motion, flte court fiom which the subpoona was issued shall quash or tnodify the subpoena, or order appearanoe orproduction only under specified conditions, if ihe subpoena does any of the following:
(a) Lails to allow reasonable time to compty;
(b) Requires disclosure of privileged or othenvise pmtected matter and no exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an expcrt not retained or specia0y cinployed by any party in anticipationof litigation or preparation for trial as described by Civ.R. 26(B)(4), if the fact or opinion does not describe specific events oroceturences in dispute and results from study by that ercpert that was not made at the request of any party;
(d) Subjects a person to unduc burden.
(4) Before filing a motion pursuant to division (C)(3)(d) of this mie, a person resisting discovery under this mie shall attetnpt toresolve any claim of undue burden through discussions with the issuing attommey. A motion filed pursuant to division (C)(3)(d) of thismle shall be supported by an affidavit of the subpoenaed person or a certificate of that person's attorney of the efforts made to resolveany claim ofundue burden.
(5) If a motion is nrade under divisiun (C)(3)(c) or (C)(3)(0) of this nde, the courtshall quash or modify the sabpoena unless the pattyin whosc bahalf the subpoena is issaed shows a substantial necd for the testlmony or material that cannot be otlierwise met withoutundue hardship and assures that the person to whom the snbpoena is addressed will be reasonably cotnpensated.
CIVIL RULE 45(0) DUTIES IN RESPONDING TO S'CBPOENA
(I) A person responding to a subpoena to produce documents shall, at the person's option, prodnce them us they are kept in the usualcourse of business or organizerl and labeled to coaespmrd with the categories in the subpocna. A person prodncing documents orelectronically stored information pursuant to a subpoena for lltem shall pennit their inspection and copying by all parties present at 8tetime and place set in the subpoena for inspmtion and copying.
(2) If a request does not spu;ify the form or forms for producing electronically stored infonnation, a person responding to a sttbpoenamay prodnce the infomration In a form or fomrs in which the in€orination is ordinarily maintained if that form is reasonably useable,or in any form that is reasonably useable. Unless ordered by the eonrt or agmed to by the person subpoenaed, a persnn responding to asubpoena need not produce the same electronically stored infonnation in more than one fonn.
(3) A peraon need not pmvide discovery ofelectronieally stored information when the production imposes undue burden or expense,On motion to compel discovery or for a protective order, the person from whom cleetronically stored information is sought must showthat the information is not reasonably accessible bccause of undue burden or expense. If a showing of utxlue burden or expense ismade, the court may nonethctess order production of etecuonically stored information if the requesting pany shows good cause. Thecourt shall consider the factors in Civ. R 26(B)(4) when determining if good cause exists. In ordering pxodnetion of electronicallystored information, the court may spccify the fonnat, extent, timing, allocation of expenses and other conditions for the discovery ofthe electronicaEly stored information.
(4) When infomtation subject to a svbpoena is withheld on a claim that it is privileged or subject to protection as trial prepacatiotrmatcrials, the claim shall bc mnde expressly and shall be supported by a description of the namre of the documents, eommunications,or things not prodnced that is suffic^ent to enable the demanding party to contest the claim_
(5) If information is produced in response to a subpoena that is subject to a claim of privilege or of proteclion as trial-prepzradonmateriat, the person making the claim may notify any party that received the information of ttte claim and the basis for it. Aiter beingnotified, a receiving party must promptly return, sequester, or destroy the speeified information and any copies within the party'spossession, custody or control. A party niay not ttse or disclose the information until the claim is resolved. A receiving party maypromtly present the information to the court under seal for a determination of the claim of privilege or of protection as trial-preparation material, If the receiving pany disclosed the information bofore being notified, it must talcc reasonable steps to retrieve it.The person wlro produced the infornration must preserve the information until the claim is resolved.
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EXFIZSf1 A
DEFINITIONS
1. "AND" and "OR" as used herein are both conjunctive and disjunctive;
2. "DOCUMENT" means all original writirigs of auy nature whatsoever and all non-identical copies thereof, in your possession, custody or control, or the possession,custody or control of any agent, officer, employee, independent contractor,representative or any person acting in conceit with you regardless of where located, andincludes, but is not Iimited to, contracts, agreements, memoranda, records, taperecordings, letters, correspondence, communications, diary entries, reports, financialstatements and reports, contact sheets, studies, stunmaries; minutes, notes, pencil notes,jottings, agendas, bulletins, notices, announcements, instructions, chazts, manuals,brochures, schedules, price lists, invoices, client lists, telephone logs, telephone tollrecords, telegrams, teletypes, computer generated data, whether printed or stored oncomputer disc or tape and other documents as defined in Civ. R. 34. hi all cases, whereoriginal and/or nonidentical copies are not available, "DOCUMENT" also meansidentical copies of such original documents and copies of non-identical copies;
3. "IDENTIFY" and "IDENTITY" have the following meanings:(a) when used in reference to a natural person means to state the person's full
name, title, telephone number and current business and residence addresses. If thecinrent business or residence addresses are imobtainable, then state the last knownbusiness or residence address and the last known date on which each such address wascurrent;
(b) when used in reference to a document means to provide, with respect tothe document, the following informatioaz:
(i) information sufficient to enable the State to identify the documentor writing, including such matters as its date, the name of the addressee or addressees,the name of the sender or senders, the title or headings of the document, and the nunaberof pages it contains;
(ii) the identity and address or addresses of the person or persons to
whom copies were sent;(iii) the present or last known location of the possessor of the original
of the document (or, if that is unavailable, the most legible copy);(iv) the identity of the natural person from whose file or possession the
document was taken to pennit production of the document;
4. "PERSON" and the possessives thereof, means an individual, corporation,proprietorsbip, partnership, professional corporation, association, business trust, estate,trust, cooperative, group, governmental agency or agent and any other entity;
5. "YOU" or "YOUR" means Conestoga-Rovers & Associates, and any othercompanies or entities with which you are associated and/or affiliated and anyemployees, agents, representatives, attorneys, accountants, and any other persons or
Page 3 of 6
entities representing you and/or directly or indirectly employed by or connected with
you;
6. "LAWSUIT" means the case entitled State of Ohio ex rel. Wayne T. Doner, et ad.v. Sean D, Logan, Director Ohio Department ofNatural Resources, et ad., Ohio
Supreme CoLUt, Case No. 2009-1292;
7. "RELATORS" means and refers to any and all of the Relators in State of Ohio exrel. Wayne T. Doner, et at. v. Sean D. Logan, Director Ohio Department ofNaturalResources, et aT., Ohio Supreane Court, Case No. 2009-1292, see Attachment 1, andincludes any employee, agent, contractor, subcontractor, representative, surveyor, orattorney or other person acting on behalf of the Relators in this action.
INSTRUCTIONS
l. If a requested document is claimed to be objectionable only in part, such objectionshould be so limited and any otberwise responsive document should be redacted
accordingly, ,
2. If anytlring has been redacted, deleted, detached or otherwise removed from adocument produced in response to a docurnent request:
(a) specify the reason for the redaction, deletion, detachment or other
removal;(b) specify the nature of the material redacted, deleted, detached or otlaerwise
removed;(c) state the date the redaction, deletion, detachment or other removal was
made; and(d) identify the person responsible for making the redaction, deletion,
detachment or other removal.
3. If you claim privilege as a ground for refusing to produce a document forRespondents' examination, fumish a list at the time of production identifying eaahdocument so withheld together with the following information:
(a) the reason for witbholding;(b) a statement of facts constituting the basis for any claim of privilege or
other ground of nondisclosure; and(c) A brie€description of the docwnent, including;
(i) the date of the doeument;(ii) the name of its author, authors, or preparer and an identification by
employment and title of each such person;(iii) the names of each person who was sent or has had access to, or
custody of the document, together witlr an identificatiott by employment and title of
each such person;(iv) the paragraph of this request to which the document relates; and
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(v) in the case of any document relating in any way to a meeting orconversation, identification of such meeting or conversation and persons attending orparticipating in such meeting or conversation.
4. If any documentary material responsive to any paragraph of this request was, butis no longer, in your possession, custody or control, for eaeb such item state whether:
(a) it is missing or lost;(b) it has been destroyed;(c) it has been transferred, voluntarily or involuntarily to another, or(d) it has been otherwise disposed ofIdentify all such documentary materials by listing for each item: type of
documentary material (letter, memorandutn, photograph, etc.), date, author, recipient,persons to whom copies were fiunished or who otherwise obtained or saw copies, jobtitles and employers of each of these persons, subject matter of the documentarymaterial, present location and custodian if known, and whetlier the documentarymaterial or any copies are still in existence.
Page 5 of 6
DOCUMENTS REQUESTED
l. All documents that reflect, refer, or relate in any way to the Lawsuit.
2. All documents that reflect, refer, or relate in any way to hydrology or hydraulicsreview and analysis you have performed, rendered, or were billed to Relators including,but not limited to, all raw and processed data used in your laydrology or hydraulicsmodeling with documentation of the sources of that data as well as the hydrologic orhydraulic models you have developed that relate to the Lawsuit.
3. All reports, draft reports, draft documents of any kind, files or notes of any kind,and/or review documents of anykind that in any way reflect, refer, or relate to theLawsuit or any hydrology or hydraulics review and analysis you have performed,rendered, or were billed to Relators.
4. All notes, correspondence, email, or other documents that reflect, refer, or relatein anyway to communications between you and Relators related to the Lawsuit or anyhydrology or hydraulics analysis you have performed rendered, or were billed toRelators.
5. All documents given to Relators by you or received by you fiom Relators thatreflect, refer, or relate in any way to conununications between you and Relators related tothe Lawsuit or any hydrology or bydraulics analysis you have performed, rendered, orwere billed to Relators.
6. All documents that reflect, refer, ox relate in anyway to any contract oragreements between you and Relators related in anyway to the Lawsuit or any hydrologyor liydraulics analysis you have perfonned, rendered, or were billed to Relators.
7. All docu.ments that identify or describe any and all instances and inatters in whichany employee has previously served or currently serves as an expert witness for Relatorsand for which Conestoga-Rovers and Associates has received coinpensation.
8. Any trial or deposition transcripts in which I'ressley L. Campbell or Jim Moirprovided expert testimony that you have in your possession and for which Conestoga-Rovers and Associates received compensation.
9. Any written or electroni.c articles, books or chapters thereof, treatises, journalarticles or any other publication authored or edited by Pressley L. Campbell or Jim Moirwhich are in the custody, possession, or control of Conestoga-Rovers and Associates.
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rqflac&M&,f /
IN THE STJPREME COURT OF OHEO
STATE OF OFIIO EX REL.WAYNE T. DOl\ER,1325 Doner Road, Celina, OH 45822
Original Action in Mandamus
JANET K. DONER, 09 ^ ^ ^ ^ ^1325 Doner Road, Celina, OH 45822 : Case No.:
RICHA.RD L. ADAMS1262 Schroeder Road, Celina, OH 4.5822
NANCY L. ADAMS1262 Schiroeder il.oad, Celina, OH 45822
PAt7L A. AGNELLO24001ndian Sinks, Brighton, M148114
RHONDA E. PO'WELL AGNELLO2400 Indian Sinks, Biighton, IvT.148114
THE BAUCHER FARMS, INC.6361 Erastus-Durbin Road, Celina, 01-145822
DAVID M. DONER1029 Jones Avenue, Oakhill, WV 25901
1CAItEN S. DONER1029 7orxes Avenue, Oakhill, WV 25901
LAWRENCE J. DWENGER3215 State ltoute 29, Celina, OH 45822
JOYCE A. DWENGER3215 State Route 29, Celina, OH 45822
STANLEY M. EBBING3547 State Route 219, Coldwater, OH 45828
VICIQ L, EBBING.3547 State Route 219, Coldwater, OH 45828
CARMAN R. ELLIS6351 Meyer Road, Celina, OH 45822
JILL E. ELLIS6351 Meyer Road, Celina, 014 45822
H. EDWARD GILBERT3003 Bunker Hili Road, Celina, OII45822
MARY E. GILBERT3003 Bunker Hi11 Road, Celina, OH 45822
DAVID L. GRANGER1670 State Route 29, Celina, Oll 45822
ROBERT E. ITIGHLEY6888 Wabash Road, Celina, OT-I 45822
PATIL[CIA L. HIGHLE'i'6888 Wabash Road, Celina, OII45$22
JASON E, HINES6389 Meyer Road, Celina, OH 45822
EMILY A. HINES6389 Meyer Road, Celina, OH 45822
DAIVIEL W. JOHNSMAN4061 State Route 29, Celina, Oll 45822
DAVID A. JOHIiSMAN4809 Mud Pike Road, Celina, OI-145822
JEAN A. KARR72 Ja.smine Street, Denver, CO 80220-5911
CHAD M. I{IYAPI{E5555 Wabash Road, Coldwater, Oll 45828
ANDREA M. KNAPKE5555 Wabash Road, Coldwater, OH 45828
MARK L. KNAPKE1036 Siegrist Jutte Road, Ft. Recovery, OH 45846
TIMOTHY A. KIVAPKE700 Pine Road, Coldwater, OH 45828
TIIOMAS L. KRICK1004 East Livingston Stteet, CeIina, OH 45822
CANDACE L. KRICK1004 East Livingston Street, Celina, OH 45822
